In praise of upholding the rule of law

"… [L]egislators are the elected representatives of the people … [L]egislative bodies are institutionally better positioned than courts to sort out conflicting interests and information surrounding complex public policy issues. If the Legislature's intended meaning is clear from the text of [a] statute, we apply that meaning, and not what we may wish the law was or what we think the law should be."

It is hard to imagine a clearer or more forthright declaration of the principle of judicial restraint than the words quoted above. It is through this principle that the separation of powers at the foundation of America's constitutional order gives courts an authority that is uniquely important precisely because it is limited.

It's the power to give actual substance and force to the choices democratically made by "the people" through their "elected representatives."

The "rule of law" exists because judges follow and uphold the law, and not their own predilections.

Yet the quotation above does not come from some conservative constitutionalist icon like Antonin Scalia, or from some rising "originalist" theoretician touted by the Federalist Society. This is the legal wisdom of Minnesota Supreme Court Justice Paul Thissen, a 15-year veteran DFL legislator from Minneapolis and former speaker of the Minnesota House with unimpeachable progressive credentials.

What's more, Thissen's deferential doctrine came in his opinion for a unanimous state Supreme Court, explaining an outcome that surely appalled every one of the justices, and especially the liberals. It was the much-discussed March 24 ruling ordering a new trial for a convicted rapist who had assaulted a passed out victim who had gotten herself drunk before she encountered her attacker.

Because of a faulty instruction the trial judge gave to the jury in this case, the validity of the conviction came to depend, Thissen explained in his opinion, on what it means for an intoxicated victim to be "mentally incapacitated" under Minnesota law (and thus legally unable to give consent). The court agreed unanimously that, for some reason, in current law, the Legislature has "unambiguously" defined "mentally incapacitated" to apply only to victims drugged or made drunk against their will or without their knowledge.

Even under current law, what the defendant is alleged to have done in this case is a serious crime. And it may be the very same third-degree felony he was convicted of — at least if, on retrial, the prosecutors and judge do a more skillful job of focusing on the victim being "physically helpless" (a condition also mentioned in the statute), while avoiding the oddly narrow statutory definition given to "mentally incapacitated."

But however puzzling it may be, Thissen ruled, the Legislature's definition is the law. The experienced lawmaker explains in his opinion that criminal sexual conduct statutes are complex, reflecting the Legislature's often laborious if not always successful efforts to account for many complications. There are varying types and degrees of sexual misconduct, varying kinds of vulnerabilities, varying forms of aggravating factors, leading to many different "degrees" of criminal sexual conduct. The messy give and take of the legislative process has the best chance of sorting out such messy and conflicting considerations.

In any case, the indignation that has followed the high court's ruling should be turned toward the flaws in the law, not the court's legal reasoning — as it was in the Star Tribune Editorial Board's editorial "State needs stronger sexual assault laws" (April 1).

Thissen made clear the court's lack of interest in defending the law's merits.

"[W]e offer no judgment as to whether the Legislature's choice about … voluntary intoxication is appropriate," he wrote. But "[w]hether conduct like [this defendant's] should constitute a higher-level offense is not a question we have authority to answer." He reminds lawmakers that "it is the Legislature's prerogative to re-examine the … statute and amend it."

Lawyers for the state urged the court to take a more activist role in fixing the law, to "strain and stretch the plain text" as Thissen puts it. His opinion is instead a model of a court upholding the law as it is, and with it the proper boundaries of powers in our system of government, even when it is clear doing so will be unpopular, and even when the judges themselves find the short-term result obnoxious.

I've suggested more than once in this space that courts, however roiled by controversy, often seem the last redoubt of moderation and common ground in American public life. But only last summer I wrote a column fretting that the Minnesota Supreme Court might be sorting itself into ideological factions, as the U.S. Supreme Court is often accused of doing, and dividing according to partisan background on more and more politically charged cases. I cited a recent series of high-stakes rulings on which the state court had split 5-2 along predictably partisan lines. I said such trends did not exactly put concerns about politicized judging to rest.

Having sounded that alarm, I don't wish to squander the opportunity to salute the March 24 ruling and Justice Thissen's opinion.

The Legislature can fix a lousy law. But only the courts can uphold the rule of law.

D.J. Tice is at Doug.Tice@startribune.com.